Hilarious.
So I only just realized just now that after over the weekend, kind of redoing my audio setup here, I consolidated the setup I had playing the show out to Chaos and the show as it goes out to LRN.
And only just now did I realize that my caller is probably having to hear the music and the commercials at the same time while they're on hold.
And I feel really bad and stupid about that.
Am I right, Glenn?
Yep, you are absolutely right.
God, that must have been horrible.
I hope you just put the phone down.
It's two radio shows going on at the same time.
One gets commercials, one gets music.
And this is a consequence of my recent consolidation that I did not think about.
So my apologies there.
It was a bit headache-inducing, but I'm glad it's over.
BC powder, man, I'm telling you.
BC powder.
All right.
And they don't pay me to say that.
I'm just telling you.
It's good stuff.
All right, so everybody, you recognize that voice.
It's Glenn Greenwald.
The heroic champion of human liberty over there at salon.com.
It's got a newfangled address, but the old one still works.
Salon.com/opinion/Greenwald.
He writes about everything, and he's good on pretty much everything, at least that he writes about.
And I'm very happy to have you back here on the show.
A lot of legal issues to go over.
Oh, let me first of all mention your books, How Would a Patriot Act, A Tragic Legacy, and Great American Hypocrites.
And then the new one is Justice for Some, is that right?
Yep, but it's coming out in September.
Coming out in September, great.
And that's a subject, actually, we've talked about on this show for years and years now, Glenn, is how there's a law, in fact, there's so many laws you couldn't possibly count them, that apply to us, and yet apparently there are none that apply to those whose job it is to enforce that law on the rest of us.
Is that about what the book's about, sounds like?
Yeah, I mean, we've had this slowly developing theory that political and now financial elites should be immunized from the legal process, even when they got caught breaking serious criminal laws that went back to the Ford pardon of Nixon, where this mentality first arose, and then sort of slowly seeped into the political system, culminating with Obama's decision to protect Bush criminals who instituted a worldwide torture regime, and a regime of warrantless eavesdropping on the American people, as well as the Wall Street tycoons who's plundering caused the financial collapse, and yet at the same time, ordinary Americans not only don't enjoy that immunity, but for them, we have one of the world's harshest, and really the Western world's most oppressive penal states where people are imprisoned for even the most trivial transgressions, and so it's this juxtaposition between elite immunity and merciless justice for ordinary Americans that has created this two-tiered justice system, and that's what the book examines.
Yeah, great, well, I can't wait to read it.
If it's as good as your others, or as good as your blog, and of course, that's a subject that's very important to me as well, so I'm very happy to see that that's really the topic you're tackling, and it seems like really, well, the previous audio that Jeff Rickenback reading Murray Rothbard that I was playing in a previous segment there really has it right, that war is the health of the state, as Randolph Boren said, and it's always with the wars that all the worst precedents are set for just how little law can actually bind the power of the executive, and there's a million cases of it throughout history, but right now, we've got this Libya war, which, as you write on your blog, is wholly illegal.
Could you explain the particulars to the audience, please, there?
Sure, well, of course, under the Constitution, Article I, Section 8, the power to declare war is assigned exclusively to the Congress, and if you look at what the founders said, the argument always was that the starting of a war is the most serious undertaking that a country can possibly do, and the only possible way to allow it is if the American people actually consent to it through an act of their Congress, through a declaration of war, and yet, over the past several decades, really since the end of World War II, we've increasingly acquiesced to the idea that presidents, not Congress, are the ones who have the power to start wars, and they can essentially order U.S. military into foreign lands without any consent at all from Congress, without a declaration of war, and after the Vietnam War, which, of course, was the ultimate expression of that lawlessness, where it just sort of creeped that first it was advisors, and then it was troops who were just gonna play a limited role, and then suddenly, we were in this massive war, the Congress and the executive agreed to a law that was supposed to govern how this power was exercised in the future, and they called it the War Powers Resolution of 1973, and it essentially said that presidents have the right to order military into action if there's a national emergency involving an attack on the United States or the armed forces, and even then, the president can only order the military into action for a period of 60 days, after which point, Congress needs to approve it, otherwise, he needs to stop within 30 days.
Now, when President Obama ordered the U.S. military into Libya, he did it without even a shred or a pretense of congressional approval, even George Bush got congressional authorization for his wars in Afghanistan and Iraq, but Obama simply ordered the U.S. to participate in this war without getting congressional approval of any kind, he didn't even have the right under the War Powers Resolution to do it for 60 days because this was not, obviously, an attack on the United States or the armed forces, it was a purely optional war, but even if you want to assume, as the loyalists argued, that the War Powers Resolution lets him wage this war for 60 days without Congress, the 60-day period expired last Friday, and there was no intention on the part of the administration, apparently, to seek approval from Congress.
Certain members of the Senate have been trying just to have a debate on whether or not we should continue this war, and the Democrats in the Senate have blocked them from doing so, and so as of this last Friday, there's no authorization for it, so even if you wanted to take the dubious position that this war was justified by the War Powers Resolution in the first place, that resolution has now expired, the 60-day period, and now there's zero pretense of legal authorization, it's purely an illegal war.
Well, and what's funny about it, right, is how laughable it is that anybody in power would do something about this, right?
I mean, if it was a limited constitutional republic, the House would immediately move to impeach this president, and yet, I mean, that's ridiculous.
Well, the problem, of course, and we saw this during the Bush years, there were times when, right out in the open, the Bush administration flagrantly disregarded and scoffed at congressional authority.
I mean, they, you know, for example, got caught eavesdropping on American citizens in exactly the way that Congress criminalized in 1978 under the FISA law, and Congress did nothing about it, and ultimately, they even retroactively legalized what had been done.
And now, of course, you see the same thing happening with the war in Libya, there's no interest on the part of Congress in even having a vote because the American people are very skeptical about this war, they're skeptical of the cost, they're skeptical of the purpose, and the last thing members of Congress wanna be seen doing when they're telling people that they have to give up their Social Security and Medicare and Medicaid and a whole variety of other benefits is authorizing probably well in excess of a billion dollars and probably more on a war that has no relationship to U.S. national security or legitimate U.S. interest.
And so, they're content to let Obama simply start this war and prosecute this war without Congress because they don't wanna have to take a vote.
Right, although, I guess I'm not up on the latest politics of it, but I guess I heard that Senator Kerry and it must have been Lieberman or McCain or Graham or one of these, they were trying to retroactively legalize it now, right?
Right, well, now that, I mean, it actually did create some bit of a controversy, there were articles in CNN and on ABC News.
Basically, all of it was accused of the president.
Well, I'm sorry, let's just hold it there and we'll have to pick it up on the other side of this break, Glenn.
Sorry about that.
Okay.
Everybody, it's Glenn Greenwald from salon.com/opinion/Greenwald, and we'll be right back.
And put your phone down, man, cause this is gonna be loud.
All right, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and I'm talking with Glenn Greenwald from salon.com, the greatest blogger in the world.
And I just brought up and I said, I admit it, I didn't know enough about it.
Now I know a little bit about it.
John Kerry and John McCain have now sponsored a resolution expressing non-specific senatorial support for the war in Libya.
Does that make it all legal now, Glenn?
Well, you know, like I said, there was a controversy because the media was so brazen, even started pointing out that the war is illegal.
And the odd part about it was, you know, of course if Congress does vote on it, they're gonna vote to give the president authorization.
The Congress would never deny the president war authorization of any kind, let alone a war that was already underway.
So if Congress ends up now authorizing or expressing its support for the war, it's still illegal in the technical sense.
The war power resolution wasn't applied with its legal ongoing, but at least it'll become a little bit less illegal if the Congress does something to express its support.
Well, so does that mean that the Americans carrying out the war, the National Security Council, the president, are war criminals and could be convicted under American law?
I mean, if we had a law that applied to them?
Well, theoretically, I mean, you know.
I mean, there is a War Crimes Act, right?
But I mean, theoretically, well, you know, I don't think that it's a war crime to engage in a war without complying with getting all the domestic authorities that you need to engage in the war.
A war crime is something that complies with or violates the law of war.
So that's really about how the war is prosecuted, but it's certainly a violation of domestic law to order the US military into combat without complying with and getting the requisite authorities under the Constitution and the relevant statute.
Right, I see.
But, well, how about trying to kill Qaddafi the way they have?
They killed his son and his grandchildren, some of them, apparently.
Is that illegal under American law?
Well, you know, it's interesting.
At the time that the United States killed Osama bin Laden, and there was all the raucous celebration across the political spectrum over the fact that we dumped bullets into his head and then put his corpse into the ocean, I had actually written something asking whether it would be permissible for people that we're at war with, whether it be Iraqis coming over to the United States and trying to kill George Bush, or Libyans, or Pakistanis, or Yemenis coming over and trying to kill Barack Obama, whether that would be legitimate as well.
And people were very upset by this and acting as though that was an outrageous question to ask.
And yet, clearly, whenever we're at war, we did it in Iraq.
We tried repeatedly to kill Saddam Hussein with bombing him.
I mean, now we're clearly targeting Gaddafi with air attacks as well.
We've endorsed the idea that it's okay to kill a nation's leader when we're at war with them.
I mean, it used to be, obviously, the case that that was perfectly legitimate.
And then it became, you know, the civilized world got together after World War II and started defining what I just referred to as the laws of war, where really it's only military targets and combatants on a field of battle that are supposed to be legitimate military targets.
And so you can make a strong case that targeting the leaders of nations with murder is illegal.
But if we're gonna take the position that it's not, and some people do take that position, then we would have nothing to say if some Libyans came over to the United States and bombed the White House or tried to kill President Obama.
That would be justifiable under the principles that we've established by our actions.
Well, but as far as the law goes, it was just Gerald Ford's executive order that said we don't do this anymore after all the CIA mob plots to get Castro came out and that kind of thing.
But that just means that a president can overturn that as Bush did, as Obama's continued to do, am I right?
Right, I mean, I think there's zero, you know, virtually zero concern about or objections to trying to kill Qaddafi in the same way that there were zero objections to trying to kill Saddam Hussein.
You know, we promulgate these standards all the time and then systematically violate them and they become meaningless.
And that's certainly what happened with this one.
Oh, so they never did officially repeal Gerald Ford's executive order, even.
They just ignored on a case by case basis.
Well, Gerald Ford's executive order, which has continued through today, is really an order against covert assassinations by the CIA.
I'm not sure that targeting the leader of a foreign country with whom were formerly at war, although there's been no declaration of war or congressional authorization, but we certainly have our military deployed in that country and it is a war, whether it's a legal war and a legal war, it's still a war.
I'm not sure that trying to kill the leader of a foreign country is considered an assassination if we're actually at war, but that doesn't make it legal.
Right.
All right, now I wanted to ask you a bit about this guy, Anwar al-Awlaki.
I guess last I heard his case was stopped in the courts because of standing, but also kind of state secrets, privilege issues.
And then Obama has ordered recent attacks and attempting to kill this American citizen, a religious leader.
They say that there are indications that he's Al-Qaeda anonymously to the Washington Post or something like that.
But otherwise, you know, I wonder about that.
I mean, this is just a cut and dry Fifth Amendment case, isn't it?
That they can't deprive this guy of his life, liberty, or property without due process, yet they are anyway.
Am I wrong?
No, Anwar al-Awlaki is a U.S. born American citizen.
He was born in New Mexico.
And the reason why the U.S. government hates him so much is because he is a very effective preacher.
He, a political and religious preacher.
He especially has been effective in conveying the message to the English speaking Muslim world that if the United States is going to continue to bring violence to predominantly Muslim countries, that it's not only the right, but the duty of Muslims to fight back by bringing violence to the United States.
And he's particularly advocated for attacks on military targets, such as what Nidal Hussain did, Nidal Hassan did in attacking the military installation at Fort Dixton, Texas.
But he's also hinted that civilian targeting is legitimate as well, by virtue of the fact that the United States is killing so many Muslims, civilians, men, women, and children, so recklessly.
And under the Constitution, under the First Amendment, you have the absolute right as an American citizen to advocate that position.
The Supreme Court in the Brandenburg case in 1967 said that even advocating violence, abstract advocacy of violence, is constitutionally protected.
You have the absolute constitutional right to stand up and say, I think the government is so corrupt and so illegitimate that targeting government leaders of violence is a justifiable and even necessary step to take.
And so, in order to get around that, in order to overcome the clear constitutional barrier to targeting people based on the opinions that they express, no matter how much the U.S. government might hate them, Obama's officials began suggesting anonymously that Al-Awlaki has an operational role in Al-Qaeda, that he's actually helped to plan specific attacks and that that makes a combatant.
Now, that may be true, that may not be true, but when you're an American citizen and the government accuses you of a crime like that, and that's what it is, to plot terrorist attacks as a crime under multiple statutes of the U.S. Code, the way that it works, or the way that it's supposed to work is that the government indicts you and charges you with a crime and then brings you into court and presents the evidence and convinces the jury of your peers that you're guilty beyond reasonable doubt.
But Obama has decided to skip over all those processes and based simply on his say-so, has ordered the military and the CIA to target Al-Awlaki for death, and has, in fact, on several occasions attempted to kill him using predator drones, predator missiles shot by drones over Yemen.
The last one missed him but killed two other Yemenis, and that's not the first time.
There are at least three other Americans on this hit list that Obama has ordered killed without any due process, and as you've alluded to, the Fifth Amendment couldn't be clearer that no person shall be deprived of life without due process of law.
The President asserts the power to unilaterally impose the death penalty, which is what this is, to be judged during an executioner of American citizens, but it's hard to imagine what power he doesn't have.
Right, I mean, that's the thing.
Basically, well, I don't know.
I wonder, under the legal theories involved here, such as they are, could he order the drone strike on Al-Awlaki if he was, say, for example, in the same county in Nevada where the drone operator is?
I mean, the whole world's a battlefield, right?
Right, well, I mean, that's the thing.
Obviously, if there is an active battlefield, a combat battlefield, then militaries of all kinds have the right to kill people without due process, right?
If you're on an active battlefield and you're shooting and being shot at by a foreign army, you don't have to give due process to the soldier on the other side before you kill them.
That's just basic war.
That's just battlefield justice.
But that's not what we're talking about.
What we're talking about is Al-Awlaki being killed wherever he's found, doing whatever he is doing at the time.
So that might mean sleeping at home.
It might mean playing with his children in a park.
It might mean riding with his wife in a car.
It might mean giving a sermon in a mosque.
The government has decided that it can kill him whatever he's doing and wherever he's found, no matter how far away from a battlefield, no matter how unrelated it is to combat, based on this George Bush-Dick Cheney theory that the Obama administration has adopted and said that the whole world is a battlefield, but there's not finite, defined geographic limits any longer to battlefields, that the whole world is a battlefield and the war on terror.
And so, as you say, and the Bush administration took this position, that includes even U.S. soil.
So if Al-Awlaki were an American citizen actually on U.S. soil, and therefore, anyone listening who's an American citizen who's on U.S. soil, could also be similarly targeted by a drone attack or any other military or intelligence action based on the president's allegation, unproven and untested, that the person is involved in terrorism.
Yeah, but, well, and we ought to be clear here.
We're not saying, oh no, FEMA's coming to get everybody and Barack Obama's gonna start using drones against American citizens on American soil all the time and it'll begin any day now or anything like that, but it's the legal theory that is being not tested here, really.
That's being, I guess, it's really being ratified, confirmed by Obama's use of the same doctrine that was really created during the Bush revolution, right?
Right, I mean, it doesn't much matter.
I mean, you don't have to believe that Barack Obama is going to start randomly killing American citizens or even political dissidents or opponents.
In order to be alarmed by this, the problem is that these kind of tyrannical powers always begin in exactly this manner.
They target somebody who is very marginalized and widely reviled because that's when people acquiesce to the theory of the power.
And then once the theory, once the power is institutionalized, then it inevitably spreads, whether by this president or some future president.
And so you don't wait until it starts being abused on a wide scale to object.
By then, it's always too late.
You have to, in the first instance, say that this power exercised against anyone is illegitimate and unconstitutional.
Right, I mean, even the devil's supposed to get a fair trial, right, Dan and Webster and all that?
Well, what's amazing to me is that when we rounded up some of the worst Nazi war criminals after World War II, we didn't just shoot them in the head as some of the Allied powers wanted to.
We put them on trial at Nuremberg.
When Timothy McVeigh blew up a federal building in Oklahoma City, killing huge numbers of women and children and men of civilians, all kinds of civilians and innocent stripes, we didn't put a bullet into his head.
We put him on trial.
So this is as central to the American political tradition as anything possibly could be.
The idea that presidents don't have the power to order people punished, let alone killed, without due process, that you're entitled to see the evidence presented before you in a judicial tribunal and to defend yourself against it and to try and convince the jury that you're not guilty beyond a reasonable doubt.
Well, you know, you could go back and look at Richard Nixon and the war crimes in Vietnam and that kind of thing, but it seems like, you know, what makes all this so notable is that during the Bush years, they just drew lines just to cross them.
I mean, they just wanted to prove so badly that the president can do anything and by getting away with it, he will establish that and advancing the power of the presidency, you know, John Yoo and David Addington and Dick Cheney and all their theories of, you know, Dick Cheney's dissent in the Iran-Contra report was presidents can do whatever they want, you know, way back then.
And so, I mean, they just tortured people to death.
They secretly bombed people and countries all over the place and created this entire separate system outside the law for the prisoners and on and on and on.
There's so many breaches of the limitations on their authority that you can't even name them all.
And then it's the impunity there.
It's the fact that Barack Obama came in and said, we're looking forward, not back.
That's what makes all this possible today and for President Palin or whoever they stick us with next.
Yeah, I mean, you know, one of the big questions that, you know, you started about Bush, Cheney, executive power abuses all the time, of course, and one of the big questions always was, well, why do they need to assert these theories to let them do all these things without Congress, given how subservient the Congress has been in the wake of 9-11, basically willing to give Bush and Cheney anything that they would have asked for.
There was no need to defy Congress that way.
I mean, if Bush and Cheney went to Congress and said, we want to spot the American people without warrants, they would have overturned FISA the next day.
They did that repeatedly.
And so the question always was, why do they need to do that?
And the answer was, because they wanted to establish the principle that presidents are omnipotent, that they don't have to get permission from anybody, let alone Congress or courts to do what it is they want.
As John, you put it, these decisions are for the president alone to make.
And you see the same thing happening now with Obama.
I mean, as I just said, you know, had he gone to Congress and said, we want to go to war in Libya, there's no question he would have had huge bipartisan support.
Republicans and Democrats have been on board with this from the beginning.
So the question is, why didn't he go and get some formal authorization?
And the answer is because he didn't want to have a debate over it.
He didn't want to have to be subject to going to Congress.
He wants to establish the principle that he's the commander in chief who alone decides when and where and how the military will be used.
And so it's this omnipotent executive that more than anything, and if you go back and read the Federalist Papers and the debates at the time of the founding, that more than anything was the central fear and preoccupation of the colonists was, if we agree to the federal union, how will we not be replicating the creation of a British king that we just waged this incredibly bloody and dangerous war to liberate ourselves from?
And the answer was, he will have extremely limited powers and be checked by all these other branches.
And that's exactly what we've now abandoned and have created exactly the monarchical model that we thought we were ensuring we would never live under again.
Yeah.
Well, and you know, Robert Higgs in his book, Crisis and Leviathan has the whole model of the ratchet effect where every time we go to war, especially, but every time there's really a big crisis, the national government gains in its power and authority over the people and the economy and the society.
And even when the crisis is over, it never quite, even if some of the stuff is repealed, even if you look at the great return to normalcy parting after Woodrow Wilson in the end of the World War I era, still like that's probably the most repeal ever after a crisis.
And still they didn't go back to nearly the powers of 1911 in the presidency, and so it's always the constant ratcheting up and ratcheting up to where now our constitutional republic resembles the German government of the 30s, I think.
Well, you just, I mean, what's amazing is if you look at some of the commentary in the wake of the bin Laden killing, all these people were celebrating the fact that we would be finally emancipated from the fear mongering spell of 9-11 and that we could go back to the way our country was.
And yet, within the few weeks that bin Laden, since bin Laden has been killed, you've seen a ratcheting up of the fear mongering and a further assault on civil liberties culminating with the bipartisan agreement to extend the Patriot Act for four years without any even technical alert or modest reform.
And you've seen the White House do all sorts of things like demand greater powers for surveillance and internet snooping and the like.
And so the idea that the bin Laden killing was going to in any way arrest or let alone reverse this trend was ridiculous from the start because bin Laden wasn't the cause of all these things.
He was just the pretext.
And just like, you know, after the communist fell and we were told that we would have a peace dividend before we turned around, you know, we had the terrorists replacing the communists as the enemy that justified the military and the national security state.
And so, you know, even with bin Laden gone, there was already talk about all these new terrorists lining up to replace him.
War in the national security state finds its own pretext.
We don't actually need a real enemy.
We just continue to manufacture them.
Yeah, well, and what's funny too is, you know, you look at what a joke the so-called terrorist threat is compared to the Soviet Union, which after all actually existed and ruled a third of the world and had 50,000 hydrogen bombs and all these kinds of things.
And then you look at the stand-in before they got to the war on terrorism, all they had was South American cocaine cartels.
And that was, oh, the war on the cocaine cartels and they made movies about it and everything.
And that was like what filled in as the temporary enemy.
You think about what a joke in terms of power on earth those guys are compared to the Soviet Union or even to Al-Qaeda.
And you see the thinness of these pretexts, you know, right before your eyes if you missed it in real time, you know?
Yeah, and that, you know, that's why, you know, I thought that people who were telling themselves that the bin Laden killing would signal or permit some kind of retreat from, you know, the fear-mongering of the national security state were deluding themselves completely because that assumed that there was some real justification for the post 9-11 assault on civil liberties.
And there never was, bin Laden was the excuse.
And the national security state is so vast and powerful that it will never permit its own diminution.
It'll simply manufacture and find further causes.
That's how national security states and authoritarian governments always function is they keep the citizenry in fear and the boogeyman of the day can be changing it.
And at any moment, the key is to always have one.
Yep, all right.
Well, I always appreciate the way you inform my opinion on the show and on your great blog at salon.com/opinion/Greenwald.
It's worth its weight in titanium, especially even during inflationary times and everything, Glenn.
So thanks again for coming on the show.
All right, Scott, my pleasure.
And sorry for keeping you over time like that, but you got so much good stuff to say, I had to hear it.
All right, everybody, that is Glenn Greenwald, salon.com/opinion/Greenwald.
I read everything he writes because I think it's extremely valuable.
